Why does the law resist? Thoughts on Art. 12 CRPD

[I am delighted to host here a guest post by Walter Boente (walter.boente@unil.ch), Centre of Comparative, European and International Law, University of Lausanne; it is an advance copy of a contribution to be published in English and Spanish in Pereña Vicente/Pallarés Neila (eds.), La voluntad de la persona en la protección jurídica de adultos, 2018, proceedings of this conference which has recently taken place in Madrid: http://www.cedpp.com/es/congreso/]

Why does the law resist: thoughts on Art. 12 CRPD

Intended as a worldwide revolution, Art. 12 of the Convention on the Rights of Persons with Disabilities (CRPD) threatens to become a partial non-starter, especially in First World countries. The guardianship practice in these countries is on show, but the underlying legal systems resist fundamental changes. Although discussions provoked by Art. 12 CRPD made the lack of scientific justifications of First world guardianship systems obvious, such justifications now seem to be flourishing.

Despite some fine-tuning, Art. 12 CRPD rolls off First World’s guardianship systems. Law feels like a padded wall: a little different now, but essentially the same. Within these systems everything seems to be self-evident, but the law systems themselves are not. They are a construct of artificial concepts and rules. Only because that construction process often took place centuries ago, lawyers regularly forget about the artificiality of their system and the policies hidden beneath this allegedly neutral legal construct. The question of whether “today’s” legal techniques are still state of the art, therefore, does not arise. Germany’s guardianship system might serve as an example for this legal complacency.

The limit of law’s world

If law resists change, it seems as if it is the lawyers, who resist. The discussion is about good or better law today, but nevertheless every legal rule seems possible – it only has to be put in words, has to be communicated.

For the communication of law, we usually use our language. Without neglecting the multitude of linguistic theories, one could, broadly speaking, say that the essence of a language is a certain notion of the world. Human beings notice the world, they note what they perceive. To denominate things noted, they use words as a medium for their notions. The notions themselves are connected to and governed by a myriad of rules. From this perspective, language appears as a system, as a systematisation of the world. And its transformation leads every now and then to new notions and rules.

Lawyers do not speak their own language but a technical language based on our ordinary language. Similar to the development of ordinary language, when lawyers perceive something, they “save” in a juridical concept what they have previously conceived. For example, perceiving human interactions and voluntary obligations, lawyers developed the law (language) of contract: the concept of “contract” itself, the “offer”, “acceptance”, “form”, “agency”, and the rules attached. Juridical concepts can, in the best case, serve as an abbreviation and therefore, for facilitating and stabilizing the discourse, as a hub of rules and in consequence as a constitutive element of the legal system. In the worst case, lawyers have not yet perceived and conceived or misconceived things or the juridical concepts developed are or have become meaningless, misleading or unworldly. That is why Wittgenstein’s words remain emblematic, also for the legal language: “The limits of my language mean the limits of my world.”

Only a new perspective, but a new perspective

Not surprisingly, in history, concepts were often replaced by newly dis-covered concepts because of assuming a new position and therefore having a new perspective. The concept of the flat Earth for example was challenged by assuming such a new position, by taking a step back and perceiving the Earth from a new perspective. It is not that the concept of the flat Earth did make ships fall from its edge. But crossing the edge was impossible – in this concept.

Is it therefore too modest to say, the CRPD “only” adds a new perspective on disability and law?

(i) The aftermath of Enlightenment

Nowadays Legal systems like the German one are often reason-centred, “reasonable will”-centred. Their perspective is still, one could say, determined by the position of the philosophy of Enlightenment, which claimed to form the “world”, its concepts according to reason.

To begin with, as human dignity often complements such concepts of law, there seems to be no contradiction, if a legal system assumes the legal personality of every human being, reasonable or not – leaving aside that assuming legal personality without capacity to act, and at the same time excluding even representation of the legally incapable human being, leaves an empty word. This applies above all to so called highly personal rights, which are said to be indissolubly bound to the human being itself. These rights lie, in consequence, fallow.

Nevertheless, following such “reasonable will”-centered concepts, at least the capacity to act and in a larger sense our self-determination requires the capacity to act reasonably. If a human being cannot act reasonably, following the inner logic of this concept, she has to be re-presented by another human being, capable of acting reasonably. The act or the “will” of the latter substitutes the act of the former. It is therefore the act of the representor itself, which causes legal effects. The act of the representee, her “will”, just does not exist in this world – or was, in Germany, only recently excavated and denominated “natural will”. More on that later.

However, as a consequence of this concept, the legal effects of the act of the representor are generally valid regardless if the representor presents the representee or not by this act. Even if the representation does not present the representee at all, it may be that the representor did not care about the representee, the representor’s determination of the representee’s self is valid.

But, is it really necessary to replace in law’s world a human being by another human being and to totally disregard the act of the former? Within the logic of such a system this consequence seems to be inevitable, it corresponds to its inner logic. And to a certain degree, these consequences of the legal technique of representation are absorbed by the representor’s obligation to re-present the representee; the representor has therefore the duty to research and comply with the representee’s self. However, this only concerns the internal relationship between the representor and the representee and does not affect the validity of the representor’s act, the determination of the self of the representee. The representor might be challenged for a fault, but generally only after he represented the representee. And getting back to the legal guardianship system in particular: how often does this happen? Not surprisingly, in Germany there is little jurisprudence on the inner relationship between the guardian and the human being under his guardianship. Their relationship rests in a “black box” in this legal concept and not least because of this reason jurisprudence is beginning to be substituted by best practice guidelines.

(ii) The human rights perspective on disability

For a long time, the common conceptions of disability did not offer a perspective which challenged such conceptions of law. This was especially true for the medical perspective on disability. Disability was linked to the individual human being. According to this perspective, curing and managing the disability given took centre stage. And law did “manage” it.

Much changed with the so called social perspective on disability, which focused more on society than on the individual human being. By differentiating between the individual impairment and disability, disability itself could now be conceived as a social construct, as discrimination. And in law, the right to equality became the backdoor for human beings with impairments to be integrated in (legal) society. Nevertheless, an “impairment” remained in such concepts and the burden of proving equality was not always easy. Not least the point of reference of “equality” was difficult to determine and equality threatened to remain equality in a legal system that was designed for human beings without impairment.

The CRPD now changes this perspective on disability, once again. Its point of view broadly speaking is: human beings with impairment, respectively disability, are also human beings and therefore bear human rights as much as every other human being. From this perspective, disability does not come up in the first place: human rights are human rights, not “human without disability”-rights, or in the case of Art. 12 CRPD “human with the capacity to act reasonably”-rights. This human rights perspective includes human beings with disability into the legal system right from the start. And by doing this, the focus shifts from the right to equality to liberty rights, especially the right of self-determination. From this perspective, the preliminary question is not why human beings with disability are equal to other human beings and therefore are to be treated equally. As human beings, they are equal or the same – and it now has to be justified why their human rights should be limited. Approaches which hush up missing justifications using the concept of “person” instead of speaking about (the concept of) “human being” should in this context therefore be confined to the history books.

(iii) Law systems under scrutiny

The liberty- and the equality-approach might lead to the same results. But the ways of getting there are different and not least differently prone to error.

The legal technique, the concept of liberty rights, the name says it all, tends to be more “liberty friendly” than legal reasoning based on the right to equality. Furthermore, liberty rights are often directly linked to another legal technique, another technique of reasoning: the principle of proportionality. According to this principle, limitation of liberty is only permitted if there is a legitimate end to the limitation, if the limitation is suitable, necessary, and proportional in its narrow sense. In the present context, the principle of proportionality especially sheds light on the question, if there are no other suitable but less intrusive limitations of the right of self-determination of human beings – with or without disability.

Not surprisingly, it is not least the human beings without disability that become alert if their self-determination is at stake. But as they benefit from their liberty rights and because lawyers’ reasoning is in such cases guided by the principle of proportionality, as a result – liberty often prevails. Some examples:

– Are patients able to act reasonably concerning medical treatment? If not, do they all need a legal guardian, perhaps even the medic herself representing them? Would the patient’s answer be: “Yes! The medic is a specialist in reasoning such decisions. Furthermore, she is only representing us. It is her duty to take care of our self.” No. Such a limitation of the right of self-determination is considered unnecessary and the duty to inform the patient (and in doing so the support of the patient’s capacity to act) is seen as an equally effective but less intrusive limitation of their rights.

– Do consumers nowadays need a legal guardian, for example in the person of a consumer protection association, to represent them? Would the consumers say: “She knows better, she is only representing us and it is her duty to care of our selves.” No. Instead different, less intrusive legal concepts have been developed to master these challenges, not least rights of withdrawal and, once again: information duties to support the human being in her capacity to act.

– Do women? Do children? The Convention on the Rights of the Child works just the same way.

Finally concerning the ability of human beings with disability to act reasonably by themselves: has appreciation of such a disability to be “global”, as the German system generally presupposes it to “provide legal certainty”? Or should the ability to act reasonably be determined with regard to every single act in question? Leaving complex actions apart, do not most human beings have enough reasons for their fundamental manifestation of life? And if not, is their support not less intrusive to the right of self-determination than denying it? Even if support might not be enough to enable the ability to act reasonably – is in this case the re-presentation of the human being necessary? Why do we not just present her self, because her self is already determined to a large extent by just being it? Does the interest of Third parties really make a substitution of her self necessary?

C: We are all vulnerable

However, the human rights perspective on disability does have its drawbacks and threatens to backfire. Don’t we all have different abilities? Do these abilities have to be equalized? How much dis-ability can society, can law stand? And what room should self-responsibility take up? In particular, the discussion about excessive and suffocating consumer protection and the upcoming suggestions of an overarching concept of vulnerability points out the questions to be answered – in general.

In particular, concerning human beings with disability acting with support or being presented – do human beings with disability end up in a cocoon of specialised specialists for their disability? And why do human beings without disability but different abilities do not, up to now? Support and no-support is omnipresent in our legal relationships. We do speak louder or more slowly to be understood, we do explain or express ourselves in different ways depending on the other party, we translate into other languages, we repeat and remember, we correct or ask again, we even just wait – or commit errors, withdraw, etc. But such support or no-support to our actions and even “misacting” is already considered by our established general legal concepts.

It is most probable that, by turning outwards the inner relationship between the guardian and the human being under his guardianship, support and no-support will become more “visible” and to a certain degree as normal as they are nowadays between human beings with just different abilities. “Presenting” for example could be conceived as trans-lating, as “bringing across” (lat. trans ferre) or bringing up the self of the human being. And, not least, the question of responsibility for misacting would finally be laid open, for better or for worse. But without much doubt, these problems will to a large extent be mastered by the already existing legal concepts or their refoundation.

D: A false saint: enduring powers of attorney

There still seems to be a lot to do in the law’s world. So why not take the shortcut of so-called “enduring powers of attorney”, of prolongating our self?

To begin with: if we do break down enduring powers of attorney to communicating how we define our self in the future and by that, which future decisions comply to this self, there is no objection to this kind of “advanced planning”. This is especially the case in countries, where such limited enduring “powers” of attorney are implemented or absorbed by the state organised guardianship system. Nevertheless, we do have to understand, in the first place, that our current self is not bound by the definitions we made beforehand. Such advanced directives help others in a non-technical sense to get a vision of our self – and are therefore useless, if they stay abstract and ignore, that our life is not only about important decisions but essentially filled by all the gewgaws of daily life. But there is no reason for binding our self to ourselves, “what is said, is said”. All attempts in this regard are motivated because others do not see themselves bound to our self. And, unfortunately, these attempts often overshoot the mark.

But the dark side of these powers is another. First of all, such an attorney can only act like it is possible in the law’s word, that still means by re-presenting us. Secondly, at least in continental legal systems such as in Germany, by enduring powers of attorney we do not reinvent the system, we just avoid the state organising our representation – by organising the representation ourselves. Enduring powers of attorney in modern guardianship systems, as for example in Germany, mean generally not more than: thank you state for your experience and offering to organise my protection, but I am afraid that your protection turns out to be my harassment. I know how to do it better. But this “knowing better” regularly threatens to remain cheap talk. Dropping a case in the German state system or in a, by enduring powers of attorney, self-organised system, should in theory produce the same results. Just the way to get to these results differs – and seems to be differently trustworthy. Nevertheless, it should be remembered, that state protection, in the example of Germany, was developed in the 19th century as a reaction to the grievances caused by self- and family-organised protection.

In Germany, the renaissance of enduring powers of attorney during the 20th century, was favoured by a paternalistic guardianship system. By using general legal concepts, one tried therefore to fly under the radar of state protection – and because reforms were a long time coming, jurisprudence gave its blessing for this circumvention of the law. With the modernisation of the German guardianship system and its in-system consideration of self-determination to a large extent (or to the same extent as with powers of attorney), there seems to be no, or less, or a different need for such an escape door. And right after the reform of the German guardianship system, even the German government said: generally, hands off enduring powers of attorney! They cause more dangers than the downsides of the state guardianship system.

Today, to put it mildly, the government remains silent. Instead of investing money in developing and establishing a more trustworthy guardianship system, the state’s interest in promoting enduring powers of attorney is to save money. Organising and supervising protection, and to some extend being responsible for it, is costly, even if the protection is, to a large extent, paid for out of the protected human being’s pocket. Better to save these costs. Even if enduring powers of attorney are en vogue and regrettably promoted on an international level today, they are false saints. They pretend to be modern but are to a large extent a fall back in history. After all, the work on enduring powers of attorney seems to serve as an appeasement and a fig leaf for missing a willingness to change.

F: New discoveries

These reflections might sound worldly innocent. Once again, they are – from the German lawyer’s point of view, from their perspective.

Nevertheless, even their world is beginning to change. German lawyers lately conceived that there must be more than a will, more than a reasonable-will in their law’s world: they (re-)-discovered the concept of “natural will”. The reaction of international lawyers and especially real human beings was at least surprise and lack of understanding. If there is now also a “natural” will, what has been conceived with the notion of “will” up to now?

Up to now, this will was a “supra natural” one, with ”supra” referring here to the layer of notions or concepts that German lawyers laid over the world. It was the will of a human being, who has the capacity to act reasonably. But cases dealing with coercive medical treatment and deprivation of liberty and therefore with the human being’s very own self, forced the German lawyers – against the background of the CRPD – to take a step back from their reason-centred world-view and to justify such a limitation of the human being’s right of self-determination. There must have been another “will”, another determination of the human being’s self!? The German lawyers denominated this “new” dis-covered determination of the human being’s self, which is said to not require capacity to act, “natural will”. That is why today in German Law a “natural will” goes, although in general limited to the cases mentioned above, alongside with its sibling “free will”, formerly known as “will”. The German Federal Constitutional Court waved this new concept through: right of self-determination, all (human beings) inclusive. Nevertheless, this new concept only seems to prolong the agony of this outdated German view of the law’s world.

When the Committee on the Rights of Persons with Disabilities criticised Germany’s guardianship system, the reaction of the majority of German lawyers was: they did not understand our system! Of course, they did not, because they speak another, in the truest and best sense of the word, “naïve” language of law. The Committee might not understand the German system, but with the CRPD as point of view and its very own perspective, the Committee looked through the German system to a different conception of the law’s world – which is in a large part still to be discovered.

F: The Committee’s bet

Every science has its unsolved problems, even mathematics. It would be surprising if law had not. Regarding to Art. 12 CRPD, law science has to develop concepts to replace legal techniques of representation by legal techniques of presentation. The CRPD offers a perspective to dis-cover such new worlds of the law.

With its General Comment No. 1, the Committee on the Rights of Persons with Disabilities made a bet that there are less intrusive limitations of the right of self-determination than substituting the self. The Committee is about to win this bet.

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